1984:-1-9-84-6-ulp brandywine affiliate · 1984. 1. 9. · 1. the nonsalary provisions of the...
TRANSCRIPT
PUBLIC EMPLOYMENT RELATIONS BOARD
\ STATE OF DELAWARE
./
BRANDYWINEAFFILIATE/NCCEA/DSEA/NEA Suite 205 Prices Corner Center 3202 Kirkwood Highway Wilmington,. DE. 19802,
Complainant, U.L.P. No. 1-9-84-6B
BRANDYWINESCHOOL DISTRICT BOARD OF EDUCATION :
Pennsylvania Avenue :
Claymont, DE. 19703,
Respondent.
The dispute presented for adjudication results from an alleged
violation of §4007(a} (a) and §4007(a) (5) of the Public School Emp19yment Relations
Act, 14 Del.C. §§4001 - 4018 (Supp.1982), hereinafter referred to as the
Act. The charge was filed on September 12, 1984 by the Brandywine Affiliate/
NCCEA/DSEA/NEA, hereinafter complainant or Associ~tion, against the Brandy
wine School District Board of Education, hereinafter respondent or District.
FACTS
The Association and District were parties to a collective bargaining
agreement effective September 1, 1982 and expiring August 31, 1984 .. In
the spring of 1984, the parties entered into negotiations over a successive
agreement. On July 26, 1984, the District presented the Association with
a three year salary proposal.
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On August 20, 1984, the President of the District Board of Education
notified the Association President~by lette~ of the District's position
regarding the expiration of the current agreement on August 31, 1984 and
pending conclusion of the bargaining process. This letter stated:
1. The nonsalary provisions of the collective bargaining agreement
which expires August 31, 1984, shall continue to apply.
2. Local salary supplements for teachers shall be based on
credited experience, September I, 1984, and shall be the
lesser amounts specified by Schedule C of the expiring agreement
of the schedule submitted by the Board of Education last
month for consideration by the Association. In either case,
the degree level credited to an employee for 1984-85 shall
apply.
3. Extra Pay for Extra Responsibility (EPER) shall be the amounts
specified in Schedules D (1 to 4) of the expiring agreement
for experience levels achieved September I, 1984.
As of August 20, 1984, the parties had not reached impasse as to the salary
issue.
On September I, 1984, the District implemented its proposal
of August 20, 1984. The effect of item #2 of this policy was to reduce \.,.
the salaries of fourteen (14) bargaining unit employees below the salary
level those teachers would have received under the 1983-84 contractual
salary schedule. The District has continued to pay these employees at
the lesser salary level which was determined by comparing cell by cell
the District's July 26 proposal with the 1983-84 contractual salary schedule
(Schedule C, above).
As a result of the District's action, the Association filed
an unfair labor practice complaint alleging that the District has failed
to bargain in good faith by unilaterally altering the existing salary
schedule by refusing to pay all of its public school employees the local
salary supplement indicated by the 1983-84 contractual salary schedule.
The Association also alleges that the District has interfered with, restrained
and coerced its employees in the exercise of rights guaranteed to them
under the Act by instituting a unilateral change in the terms and conditions
of employment without negotiation.
The District denies it has breached its duty to bargain in good
faith with the Association. It asserts that the Association, under the
guise of maintaining the status quo, is seeking to undermine the District's
good faith bargaining position by forcing the District to perpetuate existing
inequities under the 1983-84 cont~actual salary schedule. The District
maintains that such inequities are the result of the New Castle County
School District local salary schedule of 1981-82 which was inequitable
and poorly conceived. The District further contends that it would be
practically impossible for the District to negotiate a salary decrease
for the fourteen affected employees in order to preserve the salary equity
which the District established in its proposal of July 26. The District
,. takes the position that the circumstances underlying and surrounding its
implementation of the August 20 policy justify the actions taken and insulate
such action from the Association's unfair labor practice charge.
The parties have agreed in a written stipulation to the facts
here presented. Legal briefs in support of the parties' respective positions
have been submitted to the Public Employment Relations Board.
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At the time of this decision, negotiations continue as to a
new and successive salary schedule. Agreement has not yet been reached.
ISSUE
The issue is whether the respondent has engqged in and/or is
engaging in an unfair labor practice, in violation of §4007(a) (1) and
§4007(a) (5) of the Public School Employment Relations Act, 14 Del.C. §§4001
4018 (Supp.1982), by failing to pay fourteen (14) teachers the salary
increment to which their level of education and total years of experience
entitled them according to the salary schedule which represented the status
quo, without first bargaining , at least to the point of impasse, with
the exclusive representative of such employees.
OPINION
Delaware public school boards and the exclusive representatives
of public school employees are obligated under the Public School Employment
Relations Act (14 Del.C. Chapter 40) to enter into collective bargaining
negotiations with the willingness to resolve disputes relating to terms
and conditions of emlploymenf~ 14 Del.C. §4001(b), §4002(e). "'Terms
and conditions of employment' means matters concerning or related to wages,
salaries, hours, grievance procedures and working conditions". 14 Del.C.
§4002(p). It is clear that the legislature intended all matters concerning
or related to these specified terms and conditions of employment to be
mandatory subjects of bargaining for all public school employers and employee
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representatives entering into the collective bargaining process. Appoquini
mink Ed. Assn. v. Bd. of Ed. of Appoquinimink S.D., Del.PERB, D.L.P. No.
1-3-84-3-2A (August 14, 1984). The parties to this dispute clearly have
an express statutory duty to bargain a mandatory t~rm and condition of
employment, i.e. salaries. A unilateral change in such a term and condition
of employment, by an employer, without prior impasse, violates the employer's
statutory duty to collectively bargain because it undermines the process
of mutual resolution of disputes relating to such mandatory matters.
Appoquinimink Ed. Assn. v. Bd. of Ed. of Appoquinimink S.D., Del.PERB,
D.L.P. No. 1-2-84A (July 23, 1984).
Maintaining stability during the negotiation process is a crucial
factor in continuing the orderly and uninterrupted operations of the public
school system and to maintaining an environment where the parties are
free to negotiate in good faith on an equal basis. To permit one of the
parties to impose a unilateral change in a mandatory 5uoject of bargaining,
without prior negotiation at least to the point of impasse, jeopardizes
the desired stability and permits one party to effectively circumvent
the collective bargaining process, thereby creating the potential for
unfair advantage. Appoquinimink Ed. Assn. v. Ed. of Ed. of Appoquinimink
S.D. (July 23, 1984), Supra.
Where the employer~first informs the union of its [the employer's]
proposed actions under circumstances which afford a reasonable opportunity
for counter proposals and arguments, the District asserts impasse is not
always necessary prior to implementing a change in a mandatory subject
of bargaining. The District cites a number of National Labor Relations
Board cases in support of this position. N.L.R.B. v. Citizens Hotel Co.,
5th Cir., 326 F.2d 501 (1964); N.L.R.B. v. J.P. Stevens & Co., Inc., 5th
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Cir., 538 F.2d 1152 (1976); N.L.R.B. v. United Nuclear Corporation, 10th
Cir., 381 F.2d 972 (1967). The Fifth Circuit Court of Appeals applied
this doctrine in N.L.R.B. v. Tex-Tan, Inc. (5th Cir., 318 F.2d 472 (~963»
with clarity where it found an employer not guilty of an unfair labor
practice in a situation where the employer initiated a wage increase prior
to impasse. The court carefully noted that the proposed change had been
fully discussed as to the nature and kind of wage change and the general
proposed timing of the employer's action. There was no ultimatum or improper
condition attached to the discussion and subsequent implementation. The
employer in this case was compelled to make such changes by economic necessity
which was due to chaotic conditions created by a union job action. Without
commenting on the validity of the Tex-Tan holding, the critical differentiation
between the Tex-Tan case and N.L.R.B. v. Katz (369 u.s. 736 (1962» is
the prior notification and consultation with the union in Tex-Tan which
was lacking in Katz. In N.L.R.B. v. Crompton-Highland Mills (337 u.s.
217 (1949» however the Supreme Court found an employer guilty of an unfair
labor practice where, prior to impasse, a wage increase was instituted
which was greater than the employer's prior proposals during the course
of collective bargaining. The employer's prior proposal in that case
had been rejected as being insufficient by the union. Under these circumstances
it was ruled that the employer failed to perform its statutory duty to
bargain by its action with respect to the wage increase.
In the present case the Brandywine Board implemented neither
a wage increase nor the same proposal it had made to the Association on
July 26, 1984. There had been no negotiations between July 26 and August
20 due to the explained absence of the Association's chief negotiator,
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of which the District had prior knowledge. In fact, it was not until
September 25, 1984, the next negotiation session subsequent to the District's
July 26 salary proposal that salary was next discussed. However, on September
I, 1984, the School District had already implemented a hybrid structural
matrix adjustment which unilaterally reduced the salaries of fourteen
bargaining unit employees for the 1984-85 school year. The remaining
employees were to be properly paid according to the 1983-84 salary schedule
at the experience level mandated by the PERB decision in Appoquinimink
Ed. Assn. v. Bd. of Ed. of Appoquinimink S.D. (July 23,1984, Supra.).
It is apparent tht the structural salary changes unilaterally implemented
by the District were neither first discussed with nor rejected by the
Association. The Association was notified of the District's intent to
alter the salary matrix only ten days prior to the date of implementation.
The parties agree that no imp~~se existed at that point. Although prior
notice was given to the As'sociation regarding the District's intended
action, subsequent meaningful negotiations between the parties prior to
implementation is critically lacking. Negotiations as to salary are continuing
as of the date of the issuance of this decision.
Consistent with both the Superior Court and the Chancery Court
of the State of Delaware, the Public Employment Relations Board in Appoquinimink
Ed. Assn. v. Bd. of Ed. of Appoquinimink S.D. (July 23, 1984, Supra.)
applied the principles governing the violation caused by unilateral changes
in the terms and conditions of employment: during the collective bargaining
process, as set forth in N.L.R.B. v. Katz (Supra.). The Brandywine School
District maintains the Katz decision supports its position herein in that
the Supreme Court did not forbid all unilateral change by employers, even
absent impasse. The District further asserts that the current facts present
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a circumstance which, under Katz, could or should be accepted as excusing
or justifying unilateral action. A careful reading of Katz requires a
rejection of this argument. Unilateral action by the employer without
prior discussion with the employee representative constitutes a per se
refusal to bargain about the affected condition of employment being negotiated.
N.L.R.B. v. Katz (Supra.). In Katz, the Supreme Court also noted in closing
that unilateral change would rarely be justified "by any reason of substance".
Upon reviewing the record, it must be concluded that the Brandywine District's
unilateral action is not justified by any such reason of substance. The
District argues that its unilateral change was necessitated by a need
to create a primary bargaining position without which the District would
be forced to jettison its goal of establishing an equitable salary schedule.
In short, the District unilaterally set the stage to proceed with salary
negotiations from a point where it felt negotiations should properly begin.
This was accomplished by adjusting the salary matrix to a position which
the District felt was more "equitable" to all teachers in the district.
However, the word "equitable" is a value laden term and represents the
essence at which the principles of collective bargaining are aimed. The
creation and existence of an equitable state does not readily lend itself
to unilateral imposition by only one of the interested parties. It is
most effectively accornplishea'through bilateral negotiations and compromise.
The Public School Employment Relations Act requires the use of the collective
bargaining process where mandatory subjects are involved. Conversely,
there is no requirement that either of the parties accede to the substantive
position of the other. The District's argument here represents the antithesis
of this statutory scheme in that it abandons the process in favor of adopting
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its own desired end result. At best, the District's justification for
its unilateral imposition of a change in the salaries of bargaining unit
employees is purely speculative and prospective in nature. Such action
is in direct opposition to the statutory purposes of collective bargaining
in the Delaware public school system.
Finally, the District supports its position by arguing the absence
of any intention to undermine the bargaining position of the Association.
The Katz case clearly establishes that the duty to collectively bargain
terms and conditions of employment may be violated without a general failure
of subjective good faith. The employer may maintain "every desire to
reach agreement •.. on an overall collective agreement and earnestly and
in all good faith bargain to that end" and still committ a per se refusal
to bargain as to a particular mandatory subject of bargaining. It is
not doubted that the District was moved by well meaning intentions to
adopt changes which it felt were necessary to establishing a more equitable
salary matrix. However, such equitable adaptations are properly the subject
of collective bargaining where they relate to mandatory subjects of bargaining.
The District acknowledges that the parties have in the past worked together
to minimize inequities under prior contracts. Despite its benevolent
motivations, the District's unilateral change in the salary levels of
bargaining unit employees con'~titutes a per se refusal to bargain with
the Association, in violation of 14 Del.C." §4007(a) (5).
CONCLUSIONS OF LAW
Based on the foregoing, I make the following conclusions of law:
1. The Brandywine School District is a Public School Employer
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within the meaning of §4002(m) of the Act.
2. The Brandywine Affiliate/NCCEA/DSEA/NEA, is an Employee
Organization with the meaning of §4002(g) of the Act.
3. The Brandywine Affiliate/NCCEA/DSEA/NEA, is the Exclusive
Bargaining Representative of the School District's certificated
professional employees within the meaning of §4002(j) of
the Act.
4. The District violated §4007(a) (5) of the Act by failing
to pay fourteen (14) bargaining unit employees the salary
increment to which their level of education and total years
of experience entitled them according to the salary schedule
which represented the status quo wihout first bargaining,
at least to impasse, with the exclusive bargaining repre
sentative of such employees.
5. By engaging in the conduct described in '4, the District
did not violate §4007(a) (1) of the Act. There is not sufficient
evidence on the record to warrant a finding that the District
interfered with, restrained or coerced any employee in or
because of the exercise of any right guaranteed under this
Chapter.
,. \.
REMEDY
Pursuant to 14 Del.C. §4006(h) (2), the Board of Education of
the Brandywine School District is ordered:
A. To cease and desist from:
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1. Continuing to implement this salary schedule which
unilaterally decreases the wages of fourteen (14)
teachers and which was instituted without first bargaining
the issue~at least to the point of impasse, during
the pendancy of the negotiations.
B. Take the following affirmative action:
1. Recognize the current level of education and the 1984
total years of service credit for all teachers and
to pay all teachers according to the 1983-84 contractual
salary schedule which represented the status quo as
of August 31, 1984.
2. Pay the fourteen (14) teachers currently receiving
a rate of pay less than that to which they are entitled
under the 1983-84 contractual salary schedule that
higher rate of pay to which they are so entitled under
the above salary schedule according to their current
education level and total years of experience.
3. The proper rate of pay is to be effective as of September
1, 1984, and pay adjustments are to be made retroactive
to September 1, 1984.
4. Notify tne Public Employment Relations Board in writing
within thirty (30) calendar days from the date of
this Order of the steps that have been taken to comply
with the Order.
It is so ordered.
c "ev..~ ~.:.£. o=ny _ Charles D. Long, Execu~ve Director Deborah L. Murray-Sheppard, Adm. Asst. Delaware Public Employment Relations Delaware Public Employment Relations
Board Board
NovP-JDbP-r 20_ lqR4
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